Politics & Government
Constituent Power and Constitutional Change
Quick fact
The distinction between 'constituent power' (the people's power to create a constitution) and 'constituted power' (the government's power under that constitution) was formalized by French thinker Emmanuel Sieyès in 1789, and it explains why some constitutional changes are seen as revolutionary rather than merely legal.
Why this is interesting
Every country has a constitution, but who actually has the power to write it—and to change it? The answer reveals a fascinating puzzle at the heart of democracy.
Read the full explanation
Understanding Constituent Power and Constitutional Change
Think of a constitution as the 'rulebook' for a country's government. But who writes the rulebook? In democratic theory, the ultimate rule-maker is 'the people'—this is called constituent power. It's the raw, creative authority to establish a whole new political order. Once the rulebook is written, the government operates under its rules; that's constituted power. The trick is that the people aren't a permanent body—they're an idea. So when a country experiences a revolution or a founding moment (like the US in 1787 or South Africa in 1996), constituent power erupts. After that, ordinary change happens through amendments—which are legal, structured, and themselves governed by the constitution. But here's the puzzle: if the people are sovereign, why can't they change anything at any time? And if they can, what stops the government from doing so? This is the heart of the tension between democratic will and legal stability.
A deeper explanation
The mechanism at work is the distinction between two levels of power. Constituent power (pouvoir constituant) is the extra-legal, ultimate authority of the people to found a new political order. It operates in 'constitutional moments'—revolutions, independence, or deliberate founding acts. Constituted power (pouvoir constitué) is the ordinary legislative, executive, and judicial authority created by the constitution. These are two different planes of operation. When a government changes the constitution through an amendment, it is acting as constituted power, using procedures the constitution itself defines. This is legal change. But when a people sweep aside an entire constitutional order, that's an act of constituent power—it's revolutionary, even if peaceful. The conceptual difficulty arises because the constitution cannot legally authorize its own replacement, yet it can provide for its own amendment. The doctrine of 'unamendable provisions' (like Germany's protection of human dignity) tries to protect certain core values from being changed even by amendment, showing that some things are placed beyond the reach of ordinary politics. This structure explains why constitutional change is both necessary and dangerous: it must be possible for the people to adapt, but the process must be regulated to prevent abuse. The concept also explains why some changes are seen as illegal under the current legal order but legitimate under a higher principle—such as a revolution that creates a new legal system. In practice, this means that constitutional courts often struggle with the 'constituent power paradox': if the people are sovereign, can they be bound by the constitution they created? The answer matters because it shapes how we view the legitimacy of constitutional change, whether through amendment, judicial reinterpretation, or outright revolution.